01a00563
03-21-2000
Robert E. Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert E. Jones, )
Complainant, )
)
v. ) Appeal No. 01A00563
) Agency No. 4D-250-1054-94
William J. Henderson, ) Hearing No. 170-97-8130X
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal from the agency's October 6, 1999
decision finding that the agency did not discriminate against complainant
based on complainant's sex (male), age (date of birth: December 1,
1951), and disability (knee, shoulder, and back impairments).<1> In his
complaint, complainant alleged that he was discriminated against when in
November 1993 he was not selected for the Postmaster positions located
in Atkins, Virginia (EAS-15 level); Long Island, Virginia (EAS-13 level);
and Smoot, West Virginia (EAS-11 level).
Complainant initially settled the complaint on March 15, 1994,
but subsequently alleged that the agency breached the agreement.
Complainant filed an appeal with the Commission regarding his breach
of settlement claim and the Commission issued a decision on October 28,
1996 setting aside the settlement agreement for lack of consideration.
Jones v. United States Postal Serv., EEOC Appeal No. 01956176 (Oct. 28,
1996). The agency reinstated the complaint and complainant subsequently
requested a hearing before an EEOC Administrative Judge.
On June 7, 1999, in a Scheduling Order, an EEOC Administrative Judge
issued a decision without holding a hearing. The administrative judge
found that complainant was discriminated against because of his sex
when he was not selected for the Postmaster positions in Long Island
and Smoot. The administrative judge found that complainant was not
discriminated against on the bases of his age or disability when he
was not selected for the Postmaster positions in Long Island and Smoot.
The administrative judge also found that complainant was not discriminated
against on the bases of sex, disability, or age, when he was not selected
for the Atkins Postmaster position. On July 14, 1999 a hearing was held
on the issue of compensatory damages.
On July 27, 1999 the administrative judge issued a decision further
explaining her findings of discrimination, her findings of no
discrimination, and setting forth the following corrective action to be
taken by the agency:
Promotion of complainant to the position of Postmaster EAS-13 level
retroactive to November 27, 1993 (the earliest effective date of the
two discriminatory promotions).
Backpay with interest (computed in the manner prescribed by 5 C.F.R. �
550.805), including increases in pay and set raises, retirement benefits
(if applicable), and any other benefits to which complainant would
have been entitled, retroactive to the earliest effective date of the
promotions, November 27, 1993 until June 21, 1994 (the date from which
complainant has been unable to work).
Posting of a notice attached to the administrative judge's decision.
Payment of compensatory damages (all non-pecuniary) in the amount of
$5,000.00.
The agency found in its October 6, 1999 decision that complainant
was not discriminated against on any alleged bases in the complaint.
The agency further asserted that complainant should not have been
awarded compensatory damages. On appeal, complainant asserts that the
administrative judge's decision was correct. The Commission finds that
complainant is not challenging the administrative judge's findings of
no discrimination and therefore we will not consider those claims in
this decision.
The Commission finds that the administrative judge properly found that
complainant was discriminated against because of his sex when he was
not selected for the Postmaster positions in Long Island and Smoot.
The administrative judge found, and the agency admits, that the Selectees
for the two Postmaster positions in Long Island and Smoot were female.
The administrative judge found that the agency failed to articulate a
legitimate, non-discriminatory reason for not selecting complainant
because the agency failed to retain the promotion packages for the
selections. The Commission agrees with the administrative judge that
without the promotion packages in the instant matter, complainant does
not have a �full and fair opportunity to demonstrate� that the agency's
reasons were a pretext for discrimination. Under such circumstances,
we find that the administrative judge properly issued summary judgment
finding the agency discriminated against complainant because of his sex
when he was not selected for the Postmaster positions in Long Island
and Smoot.
The Commission's review of the record shows that the administrative
judge's remedy is appropriate and that the award of $5,000.00 in
compensatory damages is sufficient and appropriate for complainant's
non-pecuniary damages.
The agency's decision finding no sex discrimination when complainant was
not selected for the Postmaster positions in Long Island and Smoot is
REVERSED and we REMAND the matter to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency shall comply with the administrative judge's July 27, 1999
remedial relief by providing the following:
Within 30 days of the date this decision becomes final, the agency
shall promote complainant to the position of Postmaster EAS-13 level
retroactive to November 27, 1993.
2. Within 30 days of the date this decision becomes final, the agency
shall provide complainant with backpay with interest (computed in the
manner prescribed by 5 C.F.R. � 550.805), including increases in pay and
set raises, retirement benefits (if applicable), and any other benefits to
which he would have been entitled, retroactive to the earliest effective
date of the promotions, November 27, 1993 until June 21, 1994.
Within 30 days of the date this decision becomes final, the agency shall
post the notice attached to the administrative judge's decision in the
places and manner specified by the administrative judge.
Within 30 days of the date this decision becomes final, the agency shall
pay complainant $5,000.00 in compensatory damages.
Submit evidence showing that the agency has complied with provisions 1 -
4 of this Order (including a document reflecting complainant's promotion,
a copy of the check providing backpay, a copy of the notice, and a copy
of the check sent to complainant for the compensatory damages) to the
Compliance Officer referenced herein.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 21, 2000
______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.